Texas Student Booted - Follow-up

Several days ago, I posted an entry titled Texas Student Booted from School for Wearing John Edwards T-Shirt. In the post, I said “the question becomes, does the school district have the right (or responsibility) to restrict the clothes worn in order to keep the peace in school?” I sided with the schools.

I generated a couple of responses and promised to do more research. Special thanks to David and Tom who made me think (something that hasn’t happened outside of work in a while). This post will be long, I apologize but ask you to read it in full. Dissenting comments are welcome and expected.

While I have: 1) spent a lot of time in research and thought, 2) taken one (business) law course and 3) stayed at a Holiday Inn Express once or twice, any attempt to use this post for legal advice should be considered foolish. Or, if you use any arguments here in a bar and get into a fight, please don’t sue me.

Here’s a rough outline of my post, First, I will cover stare decis. It’s painfully long, but important. My second point will look quickly at some points on this specific case, along with points from cases that are similar. Finally, I will wrap up with my opinion and some supporting information.

Stare Decis
It’s important to understand a little bit about American law. Much to the disdain of my more conservative friends, criminal law in the US is based not only on the constitution and legislative laws, but also based on previous decisions. A policy of “stare decis” (I love speaking Latin) applies in the courts. Literally, this is translated “to stand by things decided.” It means that the courts recognize that prior court decisions must be recognized as precedents.

In cases involving the Constitution, the Court has often overruled its earlier decisions. For example, in the years 1946–1992, the U.S. Supreme Court reversed itself in about 130 cases (according to Wikipedia – not always the best source, but usually good).

In his confirmation hearing, Judge Clarence Thomas said “Stare decisis provides continuity to our system, it provides predictability, and in our process of case-by-case decision-making, I think it is a very important and critical concept. (This was in a response to Sen. Strom Thurmond, my SC senator for roughly 100 years).

But Thomas hasn’t always followed precedence. Judge Scalia has said "Clarence Thomas doesn't believe in stare decisis, period. If a constitutional line of authority is wrong, he would say, let’s get it right." Thomas would rather go against a previous ruling than continue a mistake. The judicial oath requires loyalty to the Constitution, rather than to precedence. Stare decisis is not mandated by the Constitution (again, thanks to Wikipedia).

Specific cases
I found a variety of cases regarding schools and enforcement of dress code. Nearly all focused on the student’s freedom of speech vs the school’s requirements for peace. Tom mentioned a benchmark case (Tinker vs Des Moines School District) where students wore black arm bands to protest the Vietnam War. The courts said that the school could not limit the students’ rights to free speech unless that speech constituted a “material disruption.”

Many cases go back to this 1969 decision. When looking at this specific case (Texas/Edwards t-shirt) it should be noted that the school district dress code prohibits all writing or slogans on student clothing except for “school spirit” slogans and “university logos.” The legal question would be: Does this school’s dress code meet the Tinker criteria – does the t-shirt create a “material disruption?”

The courts have decided that age of the student makes a difference. In Baxter v. Vigo County School Corp., the courts ruled that elementary school students' rights were not violated when students were disciplined for wearing expressive T-shirt reading: "Unfair Grades" and "Racism". The court concluded that the students failed to demonstrate the right to wear expressive T-shirts while in school. The court indicated that age can be a relevant factor in assessing the extent of a student's free speech rights.

In my words, elementary age students have no freedom of speech. (oops opinion slipping in too quickly)

Not only can age be a factor, but community standards can also influence school policy. In Hines v. Caston School Corp. the court noted that The court noted that evidence was presented that the enforcement of a strict dress code was a factor in improving students' attitudes toward school, and that this change in attitude had led to improvements in school attendance, drop-out rates, and academic performance.

The court stated that a community's schools be permitted to reflect its values. The court also said that "it is a valid educational function to instill discipline and create a positive educational environment by means of a reasonable, consistently applied dress code."

In my words, the courts saw value in dress code.

The same held true in a 1987 Illinois case prohibiting male students from wearing earrings as part of an effort to curb the presence and influence of gangs in the school. In this case, the school provided substantial evidence of gang presence and activity and resulting violence in its schools. The court upheld the policy, concluding that the Board's concern for the safety and well-being of its students and the curtailment of gang activities was rational and did not violate the First Amendment. (Oleson v. Board of Education of School District No. 228)

But the courts have not always supported a dress code. In California (where else?) in 1993 students filed and won a lawsuit against a dress code that prohibited clothing identifying any professional sports team or college. The court ruled that the policy violated the student’s First Amendment free speech rights. (Jeglin v. San Jacinto Unified School District)

And in a 1992 case in Oklahoma case, the courts held that the dress code was unconstitutionally applied to students when the district banned T-shirts with advertisements for alcoholic beverages. The school district failed to meet its burden of proof that the T-shirt message in question would be perceived as an advertisement for alcoholic beverages or that it would result in substantial disruption to the school. (McIntire v. Bethel Sch.)

Probably the most recent case was the “Bong Hits 4 Jesus” (2007). Seems a young man created a sign with the aforementioned slogan and held it at a school-sanctioned event (students were let out of class and accompanied by their teachers). He was suspended for 10 days for promoting illegal drug use. The courts ruled his rights were not violated and his banner was “sophomoric”.

Opinion
So, staring in the face of stare decis (sorry couldn't resist), precedence going both ways, how should this case be settled? The courts have ruled both ways depending on whether or not they see a need for the policy. If it disrupts school, leads to gang violence or drugs is against community standards or if the children are young, the courts have upheld dress codes.

On the other hand, they have often torn down dress codes in the spirit of free speech. There’s no telling which way the court will rule here IF (big if) the people involved appeal. I wouldn't bet one way or the other.

My opinion remains the same. I side with the schools. If they have a policy against political comments on t-shirts, they should enforce it. Students who violate the policy should be disciplined.

If an individual is concerned about free speech, they should go to the school board meeting and voice their concern (no evidence that this was done in this case). If the school board fails to respond, a lawsuit could be filed WITHOUT disrupting school. You may argue that this shouldn’t disrupt schools, but it will. The teacher involved and the principal will have to decide whether to enforce the rules as handed to them, or violate them (and risk their jobs). Students will begin to lose respect for the system as a whole.

It’s possible to effect change within the system.

Thanks for reading this entire note. Special thanks again to Tom and David for making me think.